2007 Oregon Code - Chapter 20 :: Chapter 20 - Attorney Fees - Costs and Disbursements
Chapter 20 — Attorney
Fees; Costs and Disbursements
2007 EDITION
ATTORNEY FEES; COSTS AND DISBURSEMENTS
PROCEDURE IN CIVIL PROCEEDINGS
ATTORNEY FEES; EXPERT WITNESS FEES
20.075Â Â Â Â Â Â Factors
to be considered by court in awarding attorney fees; limitation on appellate
review of attorney fee award
20.077Â Â Â Â Â Â Determination
of prevailing party; cases in which more than one claim made; prevailing party
on appeal
20.080Â Â Â Â Â Â Attorney
fees for certain tort claims of $5,500 or less
20.082Â Â Â Â Â Â Attorney
fees for contract claims of $5,500 or less
20.083Â Â Â Â Â Â Attorney
fees under void or unenforceable contract
20.085Â Â Â Â Â Â Costs
and attorney fees in inverse condemnation proceedings
20.094Â Â Â Â Â Â Attorney
fees in actions or suits in which discharge in bankruptcy asserted
20.096Â Â Â Â Â Â Reciprocity
of attorney fees and costs in proceedings to enforce contract
20.097Â Â Â Â Â Â Attorney
fees and costs where defendant prevails in certain proceedings to enforce
contract
20.098Â Â Â Â Â Â Attorney
fees and compensation of expert witnesses in certain proceedings for breach of
warranty
20.105Â Â Â Â Â Â Attorney
fees where party disobeys court order or asserts claim, defense or ground for
appeal without objectively reasonable basis
20.107Â Â Â Â Â Â Attorney
and expert witness fees and other costs on claim of unlawful discrimination;
defense
OTHER COSTS
20.115Â Â Â Â Â Â Service
expenses recoverable as costs and disbursements
20.120Â Â Â Â Â Â Costs
on review of decision of officer, tribunal, or court of inferior jurisdiction
20.125Â Â Â Â Â Â Assessment
of costs and attorney fees against attorney causing mistrial
20.130Â Â Â Â Â Â Proceeding
to which state or public corporation is party
20.140Â Â Â Â Â Â State
and certain public corporations not required to advance costs; payment of costs
recovered
20.150Â Â Â Â Â Â Recovery
of costs and disbursements when party represented by another
20.160Â Â Â Â Â Â Liability
of attorney of nonresident or foreign corporation plaintiff; security for costs
20.170Â Â Â Â Â Â Qualification
of and exception to security; deposit in lieu of undertaking
20.180Â Â Â Â Â Â Effect
of tender as to costs
PREVAILING PARTY FEES
20.190Â Â Â Â Â Â Prevailing
party fees
APPEALS ON ATTORNEY FEES AND OTHER COSTS
20.220Â Â Â Â Â Â Appeal
on attorney fees and costs; effect of reversal or modification
COSTS AND DISBURSEMENTS IN APPELLATE COURTS
20.310Â Â Â Â Â Â Costs
and disbursements in Supreme Court or Court of Appeals
20.320Â Â Â Â Â Â Statement
of costs and disbursements; objections
20.330Â Â Â Â Â Â Costs
and disbursements in cases of original jurisdiction
CONTINGENT FEE AGREEMENTS
20.340Â Â Â Â Â Â Contingent
fee agreement
     20.010 [Repealed by 1981 c.898 §53]
     20.015 [1983 c.527 §3; repealed by 2001 c.417 §5]
     20.020 [Repealed by 1981 c.898 §53]
     20.030 [Repealed by 1979 c.284 §199]
     20.040 [Amended by 1979 c.284 §59; repealed by 1981
c.898 §53]
     20.050 [Repealed by 1981 c.898 §53]
     20.055 [1967 c.359 §703a; repealed by 1981 c.898 §53]
     20.060 [Repealed by 1981 c.898 §53]
     20.070 [Amended by 1977 c.544 §1; repealed by 1981
c.898 §53]
ATTORNEY
FEES; EXPERT WITNESS FEES
     20.075
Factors to be considered by court in awarding attorney fees; limitation on
appellate review of attorney fee award. (1) A court shall consider the following factors in determining
whether to award attorney fees in any case in which an award of attorney fees
is authorized by statute and in which the court has discretion to decide
whether to award attorney fees:
     (a) The conduct of the parties in the transactions
or occurrences that gave rise to the litigation, including any conduct of a
party that was reckless, willful, malicious, in bad faith or illegal.
     (b) The objective reasonableness of the
claims and defenses asserted by the parties.
     (c) The extent to which an award of an
attorney fee in the case would deter others from asserting good faith claims or
defenses in similar cases.
     (d) The extent to which an award of an
attorney fee in the case would deter others from asserting meritless claims and
defenses.
     (e) The objective reasonableness of the
parties and the diligence of the parties and their attorneys during the
proceedings.
     (f) The objective reasonableness of the
parties and the diligence of the parties in pursuing settlement of the dispute.
     (g) The amount that the court has awarded
as a prevailing party fee under ORS 20.190.
     (h) Such other factors as the court may
consider appropriate under the circumstances of the case.
     (2) A court shall consider the factors
specified in subsection (1) of this section in determining the amount of an
award of attorney fees in any case in which an award of attorney fees is
authorized or required by statute. In addition, the court shall consider the
following factors in determining the amount of an award of attorney fees in
those cases:
     (a) The time and labor required in the
proceeding, the novelty and difficulty of the questions involved in the
proceeding and the skill needed to properly perform the legal services.
     (b) The likelihood, if apparent to the client,
that the acceptance of the particular employment by the attorney would preclude
the attorney from taking other cases.
     (c) The fee customarily charged in the
locality for similar legal services.
     (d) The amount involved in the controversy
and the results obtained.
     (e) The time limitations imposed by the
client or the circumstances of the case.
     (f) The nature and length of the attorney’s
professional relationship with the client.
     (g) The experience, reputation and ability
of the attorney performing the services.
     (h) Whether the fee of the attorney is
fixed or contingent.
     (3) In any appeal from the award or denial
of an attorney fee subject to this section, the court reviewing the award may
not modify the decision of the court in making or denying an award, or the
decision of the court as to the amount of the award, except upon a finding of
an abuse of discretion.
     (4) Nothing in this section authorizes the
award of an attorney fee in excess of a reasonable attorney fee. [1995 c.618 §6;
2001 c.417 §3]
     20.077
Determination of prevailing party; cases in which more than one claim made; prevailing
party on appeal. (1) In any
action or suit in which one or more claims are asserted for which an award of
attorney fees is either authorized or required, the prevailing party on each
claim shall be determined as provided in this section. The provisions of this
section apply to all proceedings in the action or suit, including arbitration,
trial and appeal.
     (2) For the purposes of making an award of
attorney fees on a claim, the prevailing party is the party who receives a
favorable judgment or arbitration award on the claim. If more than one claim is
made in an action or suit for which an award of attorney fees is either
authorized or required, the court or arbitrator shall:
     (a) Identify each party that prevails on a
claim for which attorney fees could be awarded;
     (b) Decide whether to award attorney fees
on claims for which the court or arbitrator is authorized to award attorney
fees, and the amount of the award;
     (c) Decide the amount of the award of
attorney fees on claims for which the court or arbitrator is required to award
attorney fees; and
     (d) Enter a judgment that complies with
the requirements of ORS 18.038 and 18.042.
     (3) Notwithstanding subsection (2) of this
section, upon appeal of a judgment in an action or suit in which one or more
claims are asserted for which the prevailing party may receive an award of
attorney fees, the appellate court in its discretion may designate as the
prevailing party a party who obtains a substantial modification of the
judgment.
     (4) This section does not create a claim
to an award of attorney fees in any action or suit in which the court or
arbitrator is not otherwise authorized or required to make an award of attorney
fees by contract or other law. [2001 c.417 §1; 2003 c.576 §167]
     20.080
Attorney fees for certain tort claims of $5,500 or less. (1) In any action for damages for an injury
or wrong to the person or property, or both, of another where the amount pleaded
is $5,500 or less, and the plaintiff prevails in the action, there shall be
taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount
to be fixed by the court as attorney fees for the prosecution of the action, if
the court finds that written demand for the payment of such claim was made on
the defendant not less than 10 days before the commencement of the action or
the filing of a formal complaint under ORS 46.465, or not more than 10 days
after the transfer of the action under ORS 46.461. However, no attorney fees
shall be allowed to the plaintiff if the court finds that the defendant
tendered to the plaintiff, prior to the commencement of the action or the
filing of a formal complaint under ORS 46.465, or not more than 10 days after
the transfer of the action under ORS 46.461, an amount not less than the
damages awarded to the plaintiff.
     (2) If the defendant pleads a
counterclaim, not to exceed $5,500, and the defendant prevails in the action,
there shall be taxed and allowed to the defendant, at trial and on appeal, a
reasonable amount to be fixed by the court as attorney fees for the prosecution
of the counterclaim.
     (3) The provisions of this section do not
apply to any action based on contract. [Amended by 1955 c.554 §1; 1979 c.525 §1;
1981 c.897 §1; 1981 c.898 §19; 1985 c.342 §7; 1985 c.618 §15c; 1997 c.46 §2;
1999 c.947 §1; 2001 c.542 §2]
     20.082
Attorney fees for contract claims of $5,500 or less. (1) As used in this section, “contract”
includes:
     (a) Express contracts;
     (b) Implied contracts; and
     (c) Instruments or documents evidencing a
debt.
     (2) Except as provided in this section, a
court shall allow reasonable attorney fees to the prevailing party on any claim
based on contract if:
     (a) The amount of the principal together
with interest due on the contract at the time the claim is filed is $5,500 or
less; and
     (b) The contract does not contain a clause
that authorizes or requires the award of attorney fees.
     (3) Attorney fees may not be awarded to a
plaintiff under the provisions of this section unless written demand for
payment of the claim was made on the defendant not less than 10 days before the
commencement of the action or the filing of a formal complaint under ORS
46.465, or not more than 10 days after the transfer of the action under ORS
46.461. The failure of a plaintiff to give notice under the provisions of this
subsection does not affect the ability of a defendant to claim attorney fees
under the provisions of this section.
     (4) Attorney fees may not be awarded to a
plaintiff under the provisions of this section if the court finds that the
defendant tendered to the plaintiff, prior to the commencement of the action or
the filing of a formal complaint under ORS 46.465, or not more than 10 days
after the transfer of the action under ORS 46.461, an amount not less than the
amount awarded to the plaintiff.
     (5) The provisions of this section do not
apply to:
     (a) Contracts for insurance;
     (b) Contracts for which another statute
authorizes or requires an award of attorney fees;
     (c) Any action for damages for breach of
an express or implied warranty in a sale of consumer goods or services that is
subject to ORS 20.098; or
     (d) Any action against the maker of a
dishonored check that is subject to ORS 30.701. [2001 c.542 §1; 2005 c.22 §10]
     20.083
Attorney fees under void or unenforceable contract. A prevailing party in a civil action
relating to an express or implied contract is entitled to an award of attorney
fees that is authorized by the terms of the contract or by statute, even though
the party prevails by reason of a claim or defense asserting that the contract
is in whole or part void or unenforceable. [2003 c.393 §1]
     20.085
Costs and attorney fees in inverse condemnation proceedings. In a proceeding brought under section 18,
Article I or section 4, Article XI of the Oregon Constitution by an owner of
property or by a person claiming an interest in property, if the owner or other
person prevails, the owner or other person shall be entitled to costs and
disbursements and reasonable attorney fees at trial and on appeal. [1965 c.484 §1;
1981 c.897 §2; 1995 c.79 §8]
     20.090 [Amended by 1963 c.247 §1; 1973 c.553 §1;
1981 c.897 §3; repealed by 1997 c.182 §7]
     20.094
Attorney fees in actions or suits in which discharge in bankruptcy asserted. In any action or suit on a debt in which the
defendant asserts a discharge in bankruptcy as a defense, the court shall award
a reasonable attorney fee at trial and on appeal to the prevailing party. [1971
c.167 §2; 1973 c.216 §1; 1981 c.897 §4; 1995 c.618 §18]
     20.095 [1953 c.213 §1; repealed by 1965 c.611 §18]
     20.096
Reciprocity of attorney fees and costs in proceedings to enforce contract. (1) In any action or suit in which a claim
is made based on a contract, where such contract specifically provides that
attorney fees and costs incurred to enforce the provisions of the contract
shall be awarded to one of the parties, the party that prevails on the claim,
whether that party is the party specified in the contract or not, shall be
entitled to reasonable attorney fees in addition to costs and disbursements.
     (2) Attorney fees provided for in a
contract described in subsection (1) of this section shall not be subject to
waiver by the parties to any such contract that is entered into after September
9, 1971. Any provision in such a contract that provides for a waiver of
attorney fees is void.
     (3) As used in this section and ORS
20.097, “contract” includes any instrument or document evidencing a debt. [1971
c.202 §1; 1975 c.623 §3; 1979 c.735 §1; 1981 c.898 §20; 1983 c.527 §1; 2001
c.542 §§3,3a]
     20.097
Attorney fees and costs where defendant prevails in certain proceedings to
enforce contract. (1) In any
action or suit on a contract by an assignee of any right under that contract,
the maker of that contract and the plaintiff in the action or suit on that
contract shall be severally liable for any attorney fees and costs that may be
awarded to the defendant in the action.
     (2) As used in this section, “maker” means
the original party to the contract which is the subject of the action or suit
who is the predecessor in interest of the plaintiff under the contract.
     (3) A maker shall be liable under this
section only if the defense successfully asserted by the defendant existed at
the time of the assignment of the contract. [1975 c.623 §2; 1989 c.1065 §1;
2001 c.542 §4]
     20.098
Attorney fees and compensation of expert witnesses in certain proceedings for
breach of warranty. (1) In
any action for damages for breach of an express or implied warranty in a sale
of consumer goods or services where the amount pleaded is $2,500 or less and
the plaintiff prevails in the action, there shall be taxed and allowed to the
plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court
as attorney fees for the prosecution of the action, and as part of the
disbursements of the action, a reasonable amount to be fixed by the court as
compensation of expert witnesses, if the court finds that written demand for
the payment of such claim was made on the defendant not less than 30 days
before commencement of the action and that the defendant was allowed within
that 30 days reasonable opportunity to inspect any property pertaining to the
claim; provided, that no attorney fees at trial and on appeal or compensation
of expert witnesses shall be allowed to the plaintiff if the court finds that
the defendant tendered to the plaintiff, prior to the commencement of the
action, an amount not less than the damages awarded to the plaintiff.
     (2) If the defendant prevails in an action
in which the plaintiff requests attorney fees or compensation of expert
witnesses under subsection (1) of this section, the court may in its discretion
allow reasonable attorney fees at trial and on appeal or a reasonable amount as
compensation of expert witnesses to the defendant if it finds the action to
have been frivolous. [1971 c.744 §23; 1975 c.586 §1; 1981 c.897 §5; 1981 c.898 §21]
     20.100 [Repealed by 1981 c.898 §53]
     20.105
Attorney fees where party disobeys court order or asserts claim, defense or
ground for appeal without objectively reasonable basis. (1) In any civil action, suit or other
proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal
to or review by the Court of Appeals or Supreme Court, the court shall award
reasonable attorney fees to a party against whom a claim, defense or ground for
appeal or review is asserted, if that party is a prevailing party in the
proceeding and to be paid by the party asserting the claim, defense or ground,
upon a finding by the court that the party willfully disobeyed a court order or
that there was no objectively reasonable basis for asserting the claim, defense
or ground for appeal.
     (2) All attorney fees paid to any agency
of the state under this section shall be deposited to the credit of the agencyÂ’s
appropriation or cash account from which the costs and expenses of the
proceeding were paid or incurred. If the agency obtained an Emergency Board
allocation to pay costs and expenses of the proceeding, to that extent the
attorney fees shall be deposited in the General Fund available for general
governmental expenses. [1983 c.763 §57; 1995 c.618 §2]
     20.107
Attorney and expert witness fees and other costs on claim of unlawful
discrimination; defense. (1)
In any civil judicial proceeding, including judicial review of an
administrative proceeding based on a claim of unlawful discrimination, the
court shall award to the prevailing plaintiff attorney and expert witness fees
reasonably and necessarily incurred in connection with the discrimination
claim, at the trial court or agency level and on appeal. The court may award
reasonable attorney fees and expert witness fees incurred by a defendant who
prevails in the action if the court determines that the plaintiff had no
objectively reasonable basis for asserting a claim or no reasonable basis for
appealing an adverse decision of a trial court or agency.
     (2) In making an award under this section,
the court shall calculate attorney and expert witness fees on the basis of a
reasonable hourly rate at the time the award is made, multiplied by the amount
of time actually and reasonably spent in connection with the discrimination
claim.
     (3) When an award under this section is
made against a state agency or an officer or employee of a state agency, the
award shall be paid by the agency directly from funds available to it.
     (4) As used in this section, “unlawful
discrimination” means discrimination based upon personal characteristics
including, but not limited to, gender, national origin, age, marital status,
race, religion or alienage. [1985 c.768 §1; 1995 c.618 §20]
     Note: The amendments to 20.107 by section 14,
chapter 100, Oregon Laws 2007, are the subject of a referendum petition that
may be filed with the Secretary of State not later than September 26, 2007. If
the referendum petition is filed with the required number of signatures of
electors, chapter 100, Oregon Laws 2007, will be submitted to the people for
their approval or rejection at the regular general election held on November 4,
2008. If approved by the people at the general election, chapter 100, Oregon
Laws 2007, takes effect December 4, 2008. If the referendum petition is not
filed with the Secretary of State or does not contain the required number of
signatures of electors, the amendments to 20.107 by section 14, chapter 100,
Oregon Laws 2007, take effect January 1, 2008. 20.107, as amended by section
14, chapter 100, Oregon Laws 2007, is set forth for the userÂ’s convenience.
     20.107. (1) In any civil judicial proceeding,
including judicial review of an administrative proceeding based on a claim of
unlawful discrimination, the court shall award to the prevailing plaintiff
attorney and expert witness fees reasonably and necessarily incurred in
connection with the discrimination claim, at the trial court or agency level
and on appeal. The court may award reasonable attorney fees and expert witness
fees incurred by a defendant who prevails in the action if the court determines
that the plaintiff had no objectively reasonable basis for asserting a claim or
no reasonable basis for appealing an adverse decision of a trial court or
agency.
     (2) In making an award under this section,
the court shall calculate attorney and expert witness fees on the basis of a
reasonable hourly rate at the time the award is made, multiplied by the amount
of time actually and reasonably spent in connection with the discrimination
claim.
     (3) When an award under this section is
made against a state agency or an officer or employee of a state agency, the
award shall be paid by the agency directly from funds available to it.
     (4) As used in this section, “unlawful
discrimination” means discrimination based upon personal characteristics
including, but not limited to, race, religion, sex, sexual orientation,
national origin, alienage, marital status or age.
     20.110 [Repealed by 1981 c.898 §53]
OTHER COSTS
     20.115
Service expenses recoverable as costs and disbursements. (1) A person who is otherwise entitled to
recover costs and disbursements may recover the following amounts as part of
costs and disbursements:
     (a) An amount paid to a sheriff for
service of process or other documents under ORS 21.410.
     (b) An amount paid to a person other than
a sheriff for service of process or other documents. Except as provided in
subsection (2) of this section, the amount that may be recovered as costs and
disbursements under this paragraph may not exceed the maximum amount payable to
a sheriff for service of the same process or document under ORS 21.410.
     (2) In addition to amounts recoverable
under subsection (1) of this section, a person who is otherwise entitled to
recover costs and disbursements may recover the following amounts paid to a
person other than a sheriff for service of process or other documents:
     (a) The reasonable cost of service outside
this state.
     (b) The reasonable rate for mileage.
     (c) The reasonable cost of locating and
serving a party when routine service methods are unsuccessful.
     (d) The reasonable cost of expedited
service if expedited service is necessary.
     (3) In addition to amounts recoverable
under subsections (1) and (2) of this section, a person who is otherwise
entitled to recover costs and disbursements may recover amounts paid for an
attempt at service made in good faith if the amounts paid would be recoverable
under subsections (1) and (2) of this section had service of process or other
documents been accomplished.
     (4) The provisions of this section do not
limit the ability of a party to recover any reasonable costs of service if the
party has a contract right to recover those costs. [1997 c.202 §1]
     20.120
Costs on review of decision of officer, tribunal, or court of inferior
jurisdiction. When the
decision of an officer, tribunal, or court of inferior jurisdiction is brought
before a court for review, such review shall, for all the purposes of costs or
disbursements, be deemed an appeal to such court upon errors in law, and costs
therein shall be allowed and recovered accordingly.
     20.125
Assessment of costs and attorney fees against attorney causing mistrial. In the case of a mistrial in a civil or
criminal action, if the court determines that the mistrial was caused by the
deliberate misconduct of an attorney, the court, upon motion by the opposing
party or upon motion of the court, shall assess against the attorney causing
the mistrial costs and disbursements, as defined in ORCP 68, and reasonable
attorney fees incurred by the opposing party as a result of the misconduct. [1985
c.556 §1; 1995 c.618 §3]
     20.130
Proceeding to which state or public corporation is party. In all actions or suits prosecuted or
defended in the name and for the use of the state, or any county or other
public corporation therein, the state or public corporation is liable for and
may recover costs and disbursements in like manner and with like effect as in
the case of natural persons. When a natural person is joined with the state as
plaintiff, or the action is upon the information of such natural person, the
natural person shall be liable in the first instance for the defendantÂ’s costs
and disbursements; and such costs and disbursements shall not be recovered from
the state until after execution is issued therefor against such person and
returned unsatisfied in whole or in part.
     20.140
State and certain public corporations not required to advance costs; payment of
costs recovered. When the
state or any county, city or school district in this state, or an officer,
employee or agent thereof appearing in a representative or other official
capacity, is a party in an action or proceeding in any court in this state,
that party is not required to pay in advance to a state or county officer any
fee taxable as costs and disbursements in the action or proceeding. If that
party is entitled to recover costs and disbursements in the action or
proceeding, the amount of the fee not paid in advance shall be included in the
statement of costs and disbursements claimed by the party, shall be entered as
part of the judgment and, if recovered by the party, shall be paid by the party
to the state or county officer entitled to receive the fee. The party shall
employ reasonable effort to recover the amount of the fee. [Amended by 1983
c.763 §19; 1987 c.405 §1]
     20.150
Recovery of costs and disbursements when party represented by another. In an action, suit or proceeding prosecuted
or defended by an executor, administrator, trustee of an express trust or
person expressly authorized by statute to prosecute or defend therein, or in
which a party appears by general guardian, conservator or guardian ad litem,
costs and disbursements shall be recovered or not as in ordinary cases, but if
recovered shall be chargeable only upon or collected from the estate, trust
fund or party represented or for whom appearance is made, unless the court or
judge thereof shall order such costs and disbursements to be recovered from the
executor, administrator, trustee, person, guardian or conservator personally
for mismanagement or bad faith in the commencement, prosecution or defense of
the action, suit or proceeding. [Amended by 1961 c.344 §99]
     20.160
Liability of attorney of nonresident or foreign corporation plaintiff; security
for costs. The attorney of a
plaintiff who resides out of the state or is a foreign corporation, against
whom costs are adjudged in favor of a defendant, is liable to the defendant
therefor. If the attorney neglects to pay the same, upon the information of the
defendant the attorney shall be punished as for a contempt. The attorney may
relieve or discharge the attorney from such liability by filing, at the
commencement of the action or suit, or at any time thereafter before judgment,
an undertaking executed by one or more sufficient sureties, or an irrevocable
letter of credit issued by an insured institution, as defined in ORS 706.008,
in either case providing for the payment to the defendant of the costs and
disbursements that may be adjudged to the attorney. [Amended by 1991 c.331 §5;
1997 c.631 §367; 2003 c.576 §285; 2005 c.22 §11]
     20.170
Qualification of and exception to security; deposit in lieu of undertaking. The sureties in the undertaking described in
ORS 20.160 shall possess the qualifications of sureties in an undertaking for
bail on arrest. The sufficiency of any surety or irrevocable letter of credit
issuer may be excepted to by the defendant at any time within five days from
notice of filing the same, and if so, they shall justify in an amount not less
than $200, in like manner and with like effect as sureties for bail on arrest.
Until the time for excepting to the sufficiency of the sureties or letter of
credit issuers has expired or, if excepted to, until they are found sufficient,
the attorney is liable as if no undertaking or letter of credit had been given.
A deposit of $200 or other sum which the court or judge may direct, with the
clerk, may be made in lieu of such undertaking or letter of credit. [Amended by
1991 c.331 §6]
     20.180
Effect of tender as to costs.
When in any action or suit for the recovery of money or damages only, the
defendant shall allege in answer that before the commencement thereof the
defendant tendered to the plaintiff a certain amount of money in full payment
or satisfaction of the cause, and now brings the same into court and deposits
it with the clerk for the plaintiff, if such allegation of tender is found
true, and the plaintiff does not recover a greater sum than the amount so
tendered, the plaintiff shall not recover costs from the defendant, but the
defendant shall recover costs from the plaintiff. [Amended by 2005 c.22 §12]
PREVAILING
PARTY FEES
     20.190
Prevailing party fees. (1)
Except as provided in subsections (2) to (5) of this section, a prevailing
party in a civil action or proceeding who has a right to recover costs and
disbursements in the following cases also has a right to recover, as a part of
the costs and disbursements, the following additional amounts:
     (a) In the Supreme Court or Court of
Appeals, on an appeal, $100.
     (b) In a circuit court:
     (A) When judgment is given without trial
of an issue of law or fact or on an appeal, $60; or
     (B) When judgment is given after trial of
an issue of law or fact, $85.
     (c) In a small claims department, a county
court or justice court, one-half of the amount provided for in paragraph (b) of
this subsection.
     (2) In lieu of the prevailing party fee
provided for in subsection (1) of this section, in any civil action or
proceeding in which recovery of money or damages is sought, a prevailing party
who has a right to recover costs and disbursements also has a right to recover,
as a part of the costs and disbursements, the following additional amounts:
     (a) In a circuit court:
     (A) When judgment is given without trial
of an issue of law or fact, $275; or
     (B) When judgment is given after trial of
an issue of law or fact, $550.
     (b) In a small claims department, a county
court or justice court:
     (A) When judgment is given without trial
of an issue of law or fact, $85; or
     (B) When judgment is given after trial of
an issue of law or fact, $100.
     (3) In addition to the amounts provided
for in subsection (2) of this section, in any civil action or proceeding in a
circuit court in which recovery of money or damages is sought, the court may
award to the prevailing party up to an additional $5,000 as a prevailing party
fee. The court shall consider the following factors in making an award under
the provisions of this subsection:
     (a) The conduct of the parties in the
transactions or occurrences that gave rise to the litigation, including any
conduct of a party that was reckless, willful, malicious, in bad faith or
illegal.
     (b) The objective reasonableness of the
claims and defenses asserted by the parties.
     (c) The extent to which an award of a
larger prevailing party fee in the case would deter others from asserting good
faith claims or defenses in similar cases.
     (d) The extent to which an award of a
larger prevailing party fee in the case would deter others from asserting
meritless claims and defenses.
     (e) The objective reasonableness of the
parties and the diligence of the parties and their attorneys during the
proceedings.
     (f) The objective reasonableness of the
parties and the diligence of the parties in pursuing settlement of the dispute.
     (g) Any award of attorney fees made to the
prevailing party as part of the judgment.
     (h) Such other factors as the court may
consider appropriate under the circumstances of the case.
     (4) Nonprevailing parties are jointly
liable for the prevailing party fees provided for in this section. A court may
not award more than one prevailing party fee to a prevailing party under this
section, or more than one prevailing party fee against a nonprevailing party
regardless of the number of parties in the action, and, upon being paid the
amount of the award, the prevailing party may not seek recovery of any additional
amounts under the provisions of this section from any other nonprevailing
party.
     (5) In any appeal from the award or denial
of a prevailing party fee under subsection (2) of this section, the court
reviewing the award may not modify the decision of the court in making or
denying an award, or the decision of the court as to the amount of the award,
except upon a finding of an abuse of discretion.
     (6) The prevailing party fees provided for
in this section may not be awarded in the following proceedings:
     (a) A class action proceeding under ORCP
32.
     (b) A condemnation proceeding.
     (c) Proceedings under the provisions of
ORS chapters 25, 107, 108, 109 and 110.
     (7) Mandatory arbitration under ORS 36.400
to 36.425 does not constitute a trial of an issue of law or fact for the
purposes of this section. [1981 c.898 §18a; 1987 c.725 §6; 1989 c.1007 §1; 1995
c.618 §7; 1997 c.249 §13; 1997 c.801 §§56,56a; 2005 c.702 §93; 2007 c.860 §16]
     20.210 [Amended by 1959 c.638 §7; 1979 c.284 §60;
repealed by 1981 c.898 §53]
APPEALS ON
ATTORNEY FEES AND OTHER COSTS
     20.220
Appeal on attorney fees and costs; effect of reversal or modification. (1) An appeal may be taken from a judgment
under ORCP 68 C(4) allowing or denying attorney fees or costs and disbursements
on questions of law only, as in other cases. On such appeal the statement of
attorney fees or costs and disbursements, the objections thereto and the
judgment rendered thereon shall constitute the trial court file, as defined in
ORS 19.005.
     (2) If an appeal is taken from a judgment
under ORS 19.205 before the trial court enters a judgment under ORCP 68 C(4),
any necessary modification of the appeal shall be pursuant to rules of the
appellate court.
     (3) When an appeal is taken from a
judgment under ORS 19.205 to which an award of attorney fees or costs and
disbursements relates:
     (a) If the appellate court reverses the
judgment, the award of attorney fees or costs and disbursements shall be deemed
reversed; or
     (b) If the appellate court modifies the
judgment such that the party who was awarded attorney fees or costs and
disbursements is no longer entitled to the award, the party against whom
attorney fees or costs and disbursements were awarded may move for relief under
ORCP 71 B(1)(e). [Amended by 1967 c.471 §2; 1981 c.898 §22; 1989 c.768 §7]
     20.230 [Repealed by 1981 c.898 §53]
COSTS AND
DISBURSEMENTS IN APPELLATE COURTS
     20.310
Costs and disbursements in Supreme Court or Court of Appeals. (1) In any appeal to the Court of Appeals or
review by the Supreme Court, the court shall allow costs and disbursements to
the prevailing party, unless a statute provides that in the particular case
costs and disbursements shall not be allowed to the prevailing party or shall
be allowed to some other party, or unless the court directs otherwise. If,
under a special provision of any statute, a party has a right to recover costs,
such party shall also have a right to recover disbursements. On the same terms
and conditions, when the Supreme Court denies a petition for review, the
respondent on review is entitled to costs and disbursements reasonably incurred
in connection with the petition for review.
     (2) Costs and disbursements on appeal to
the Court of Appeals or Supreme Court or on petition for review by the Supreme
Court are the filing or appearance fee, the reasonable cost for any bond or
irrevocable letter of credit, the prevailing party fee provided for under ORS
20.190, the printing, including the excerpt of record, required by rule of the
court, postage for the filing or service of items that are required to be filed
or served by law or court rule, and the transcript of testimony or other
proceedings, when necessarily forming part of the record on appeal. [Amended by
1971 c.99 §1; 1977 c.290 §2; 1985 c.734 §13; 1987 c.314 §1; 1991 c.331 §7; 1997
c.389 §11; 2007 c.547 §6]
     20.320
Statement of costs and disbursements; objections. Costs or disbursements shall not be allowed
in the Supreme Court or Court of Appeals to a party unless the party serves on
the adverse party or the adverse partyÂ’s attorney, and files with the State
Court Administrator, a statement certified under ORCP 17 showing with
reasonable certainty all costs and disbursements claimed by the party. The
statement must be accompanied by proof of service on all adverse parties, and
must be filed within 21 days from the date of the courtÂ’s decision, or within
such further time as may be allowed by the court. The total of the items
included in the statement of costs and disbursements thus filed, with the
exception of items or amounts not allowed by law or by rules of the Supreme
Court or Court of Appeals, shall be entered by the administrator as a part of
the appellate judgment, in favor of the party entitled to the costs and
disbursements, unless an adverse party within 14 days from date of service of
the statement serves and files objections to the statement. The filing or
appearance fee and the prevailing party fee under ORS 20.190 (1) shall be
awarded by the court without the filing of a statement of costs and
disbursements. [Amended by 1971 c.99 §2; 1983 c.774 §4; 1985 c.734 §14; 2003
c.518 §3]
     20.330
Costs and disbursements in cases of original jurisdiction. Litigants shall recover their costs and
disbursements in cases of original jurisdiction in the Supreme Court, the same
as provided in cases on appeal.
CONTINGENT
FEE AGREEMENTS
     20.340
Contingent fee agreement.
(1) In any civil action arising out of bodily injury, death or property damage,
including claims for emotional injury or distress, loss of care, comfort,
companionship and society, and loss of consortium, if an attorney for a
plaintiff in respect to any civil action enters into an agreement with the
plaintiff whereby the attorney receives as a fee a percentage of the amount of
any settlement or judgment awarded to the plaintiff:
     (a) The contingent fee agreement shall be
written in plain and simple language reasonably believed to be understandable
by the plaintiff.
     (b) The attorney shall explain the terms
and conditions of the agreement in compliance with a model explanation in plain
and simple language prepared by the Oregon State Bar a reasonable time before
the agreement is signed.
     (c) The contingent fee agreements must
contain a provision allowing the plaintiff to rescind the agreement within 24
hours after signing upon written notice to the attorney.
     (2) Any contingent fee agreement entered
into on or after September 26, 1987, that does not comply with the requirements
of subsection (1) of this section is voidable. [Formerly 9.400]
_______________
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